People v. Love, 19 Cal. 676

People v. Love

19 Cal. 676 | Cal. | 1862

Norton, J. delivered the opinion of the Court

—Field, C. J. and Cope, J. concurring.

*681Appeal from a judgment sustaining a demurrer.

Neither of the objections to the complaint in this action which have been pointed out by the respondents is sufficient to sustain the judgment. It was decided in the case of Tevis v. Randall (6 Cal. 632) that the names “ The State of California ” and “ The People of the State of California” describe the same party, and that a statute which requires a bond to be given in one name, is satisfied by a bond given in the other.

The complaint avers that upon the accused being brought before the County Judge of Amador county, the Judge ordered that the accused be admitted to bail in the sum of $1,000, and that upon giving such bail bond he be discharged from imprisonment; that the defendants, in order to release the accused from confinement, executed to the plaintiff the bond in suit; that the defendants after-wards justified their responsibility upon said recognizance ; and that the same was afterwards duly approved by the said County Judge, and filed of record in the Court of Sessions of Amador county. By these averments it appears with sufficient certainty that the bond was taken by the County Judge, who is an officer competent to take such recognizance.

The statute requires (Crim. Pr. Act, secs. 508, 516) a recognizance for the appearance, etc., of the defendant, or in default, that the bail will pay to The People of the State of California the sum in which the defendant is admitted to bail. In the recognizance in suit, the bail “ undertake and promise, in the penal sum of $1,000,” that the accused shall appear, etc., and in default thereof “ we bind ourselves, jointly and severally, unto the State of California in the penal sum of $1,000, and for the payment of which we bind ourselves, our heirs and executors firmly by these presents.” It is claimed that the presence of the word “penal” in this recognisance makes the sum specified strictly a penalty, which cannot be enforced. Although it has been sometimes said that where the parties to an agreement use the word “ penalty,” it can under no circumstai ces be held to be liquidated damages, while on the contrary the use of the term “ liquidated damages,” in the most determined manner, can have no effect where other considerations require that it should be treated as a penalty, certainly there never was any *682good reason for attributing so different an efficacy to the use of these terras. Mr. Parsons, in his work on Contracts, (2 vol. 434) states the rule on this point to be: “ that the action of the Court shall not be defined and determined by the terms which the parties have seen fit to apply to the sum fixed upon. Though they call it a penalty, or give it no name at all, it will be treated as liquidated damages; that is, it will be recognized and enforced as the measure of damages if, from the nature of the agreement and the surrounding circumstances, and in reason and justice, it ought to be.” Saniter v. Ferguson (7 C. B. 716) and Pierce v. Fuller (8 Mass. 223) are cases in which the sum specified was enforced as liquidated damages, though called by the parties a penalty. For determining whether a specified sum was intended and must be treated as a penalty or as liquidated damages, it is a well established principle of construction that it will be treated and enforced as liquidated damages where it is agreed to be paid for doing or failing to do an act in respect to which the damages are uncertain and not measurable by any exact pecuniary standard. (2 Story on Cent. sec. 1021; Bagley v. Peddie, 5 Sandf. 192.) In view of these rules, considering the whole language of this recognizance, the character of the act to be performed, and the impossibility of measuring the damages upon a default by any pecuniary standard, there can be no difficulty in deciding that it was intended by the parties, and is valid and may be enforced, as a simple undertaking to pay the sum specified. Although this recognizance, in the particulars we have been considering and in some others, is not in exact conformity with the form given in the statute, it is so substantially.

The objection that there is no allegation that the recognizance was certified to the District Court in which this action is prosecuted, and that there is no allegation that the principal has not satisfied the judgment, and the cases cited in their support are inapplicable. They have reference to proceedings by scire facias upon a record of the recognizance, and to which the accused is a party. By our practice, bail is taken by a recognizance executed by sureties, and may be done without the accused, as was done in this ease; and upon a forfeiture, the proceedings on the recognizance can only be by action against the bail. (Crim. Pr. Act, secs. 516, 537.) The *683recognizance in this case was duly filed of record in the Court of Sessions where the party was to appear, and there is no provision of law requiring it to be transferred to the District Court. If the forfeiture has been discharged, it is matter of defense to be brought forward by answer.

Judgment reversed and cause remanded for further proceedings.